An agency providing an opportunity to substantially revise a proposal can seem too good to be true. And sometimes, it is. It is a fundamental principle of procurement law that offerors must be treated equally. When one offeror is given an opportunity to “fix” the deficiencies in its proposal, but the other offeror is not, that is fundamentally unfair.
As one offeror found out, despite submitting everything to the agency as it was asked, GAO still sustained the protest.
In GAO’s decision in AECOM Management Services, Inc., B-418828.4, involved a second protest to an award by the Navy.
In December 2019 the Navy issued an indefinite-delivery, indefinite quantity (IDIQ) solicitation seeking offerors for maintenance and logistics support services. The Navy anticipated releasing task orders under the IDIQ. The solicitation envisioned a multi-step approach to evaluating the proposals. The main factors were task order administration, contract experience, planned small business participation, program execution, and cost/price.
On May 29, 2020, the Navy issued a task order to Vertex. On June 15, two offerors protested the award to Vertex. The Navy took corrective action to reevaluate the proposals. Following reevaluation, only Vertex and Protester (AECOM) were rated acceptable. After final evaluations, the Navy again made award to Vertex. This protest soon followed.
Protester alleged, among other things, that the Navy conducted unfair exchanges with Vertex. Key to the protest, the Navy allowed Vertex to substantially revise its proposal to remedy noncompliance with the solicitation.
Notably, the solicitation allowed for the Navy to conduct interchanges (discussions) with offerors during the evaluation process. The Navy noted the solicitation only said it had to treat the offerors fairly, not that the interchanges would be the same.
Vertex’s initial proposal failed to fully price its labor hours for a 40-hour work week, as the solicitation required. The Navy noted that this failure meant Vertex’s proposal was noncompliant with the solicitation. The Navy notified Vertex of its non-compliance, and also conducted a phone conference to discuss the issue. As a result, Vertex changed its proposal to come into compliance with the solicitation.
The protester, conversely, was just asked to clarify an unclear element of its proposal. The protester argued, while Vertex was able to revise and resubmit its proposal, protester was not. GAO, agreed with protester. GAO found the Navy did not conduct interchanges fairly. GAO cited to the fact that Vertex was afforded the opportunity to revise terms of its proposal, and raise the overall price by $20 million. The protester, was assigned one weakness, but was not allowed to revise its proposal.
The final word from GAO was that the opportunity for Vertex to substantially revise its proposal should have been afforded to other offerors as well. The takeaway is to balance the scales between the offerors. Any action taken on behalf of one offeror, must be given to the other offerors. This may not look the same in every procurement, however, but equality of opportunity is the goal.
GAO recommended that the Navy reopen interchanges with the offerors and, as part of that process, advise protester of the grounds upon why it was not selected and allow protester the opportunity to revise its proposal. GAO also recommended the Navy reevaluate the proposals in line with the solicitation.
Protester gets another bite at the apple. What will the final result be? Will we see a third protest of this solicitation? We can be hopeful with the clear directions from GAO, unequal discussions/interchanges should not be an issue the next time around.
Need help with a government contracting legal matter? Email us or give us a call at 785-200-8919.